06-1003_CRW ASSOCIATES_D3_Agenda ReportAGENDA REPORT
TO: Dave Adams, City Manage
FROM: Nasser Abbaszadeh, Engineering and Building Director
SUBJECT: Consideration of Agreement for Electronic Permitting and Related
Subsystem Software, CRW Associates (Priority #11a)
RECOMMENDATION:
10/3/2006
D 3
By motion, award the contract in the amount of $233,000 to CRW Associates and
approve and authorize the mayor to execute the Agreement between CRW Associates
and the City of San Juan Capistrano to purchase and install electronic permitting and
related subsystem software.
Summary:
As identified in the 2006, City Council Priority Listing, Priority # 11a identifies the need
to provide e -government solutions to the public. As the Engineering, Building and
Planning Departments currently rely on in-house database information and a
predominantly manual process for processing projects and permits, an electronic
permitting system will greatly enhance the ability to provide increased customer service
and satisfaction levels by providing faster, more accurate and readily accessible access
to the public for information processing. After an extensive selection process, CRW
Associates was chosen to provide the City with an all encompassing solution for
Building, Planning, Code Enforcement, Engineering, and Business License functions.
Background:
The City of San Juan Capistrano is the only City in South Orange County without an
electronic permitting system in place. With the large increase in building activity, staff
has become increasingly challenged to provide the type of service that the public has
come to expect. As the existing system is predominantly a manual one, there is no
integrated system used by city departments to track land development or automate the
workflow. Planning, Building and Engineering and Public Works utilize separate
autonomous tracking systems and require separate application submittals which make it
very difficult to track applications through the entire development process. Staff has
found it increasingly difficult to provide optimum customer service relating to permit
issuance, research, and cost recovery, as there is no connectivity with the other
database systems tracking the various types of information throughout the City.
Agenda Report •
Page 2 October 3, 2006
An electronic permitting system (including building, engineering, code enforcement,
planning, and business license modules) will allow staff to be more efficient and
increase overall customer service to the public with a 'one-stop shop" concept. The
basis of the 'one-stop shop" concept is to have a development application go through a
single review process prior to approval and permit issuance. Ultimately, our residents
and business users would be able to access City services via the internet, thereby
reducing trips to City Hall (meeting AQMD goals). Electronic software will also allow
staff from all departments to access information regarding a property from one place
(currently a very cumbersome process), providing a unified project, permit tracking
system and archival system. Additionally, enhanced cost recovery through improved
fee assessment and permit monitoring will be achieved.
With the aforementioned goals in mind, staff sent out a request for proposal (RFP) in
March 2006 to nine vendors that provide this type of software. Six vendors responded
to the RFP and all six provided extensive presentations to a selection committee
comprised of staff members from the Building and Engineering, Planning, Information
Services, Administrative Services, and Public Works Departments. Each vendor was
rated on the following criteria:
Comparable installations in CA/User Satisfaction and Reputation
• IT Compatibility
Ease of Navigation between modules
• Interface Appearance
Staff Notification
• Workload Management
• Connectivity with other required sites/programs
• GIS integration
• Web interface
• On-line Web Access
Wireless Access and Ease of Use
Ease of modification in house
Inclusion of reports for City use
Report writing capability and ease
Training
• Access and proximity to regular support and catastrophic support
• Ease of help in house
• Search Capability
After months of extensive review on each of the six candidates, two vendors were
selected for further evaluation (CRW-TRAKIT and Bureau Veritas-GovPartner). Staff
made on-site visits to surrounding cities to view the live environment where these
systems were in place and interviewed actual users of these systems and reviewed
their experiences relating to implementation, training, ease of use, connectivity with
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October 3, 2006
other programs, field use, report writing, ease of modification, and overall satisfaction
levels. The two vendors were then requested to provide more detailed presentations to
the selection committee, where any concerns that arose from the city visits were
addressed. In these extensive presentations, staff had an opportunity to get answers to
very specific situational issues relating to each of their job functions here at the City.
Based on staffs analysis of the proposals, site evaluations and feedback received,
CRW Associates was identified as the best solution for our City's needs. This
recommendation is based on the application features, scalability, ease of use, customer
service, training, and high level of satisfaction of the existing users.
CRW — TRAKIT
CRW Associates is a local company based on San Diego, CA. They have been
developing integrated software solutions for local government since 1991. TRAKIT is
currently in use in the cities of San Clemente, Dana Point (recent implementation),
Orange, and Escondido, CA, in addition to over 85 city and county agencies across the
United States. Feedback received regarding the operation and use of this product and
company support was all positive.
COMMISSIONIBOARD REVIEW AND RECOMMENDATIONS:
N/A
FINANCIAL CONSIDERATIONS:
Funds in the amount of $250,000 have been approved and are available in the FY
2006/2007 Operating Budget in Account # 01-65401-4400 for this project. There is an
annual cost for software maintenance and support in subsequent years of $14,500, plus
a 3% increase per year thereafter for four years. This amount will be included in the
operating budget for those years.
NOTIFICATION:
CRW Associates*
Mr. Christopher Wuerz, President
16980 Via Tazon, Suite 320
San Diego, CA 92127
* Agenda Report included
Agenda Report •
Page 4
RECOMMENDATION:
0
October 3, 2006
By motion, award the contract in the amount of $233,000 to CRW Associates and
approve and authorize the mayor to execute the Agreement between CRW Associates
and the City of San Juan Capistrano to purchase and install electronic permitting and
related subsystem software.
Respectfully submitted,
Nasser Abbaszadeh
Engineering and Building Director
Attachment:
1. Agreement with CRW Associates
Prepare
Jill Thomas
Management Analyst II
&W ASX*dwtes
AGREEMENT
FOR THE INSTALLATION AND USE OF
PERMIT, PLANNING, AND CODE ENFORCEMENT SOFTWARE
This Agreement is entered into this day of _, by and between the CITY
OF SAN JUAN CAPISTRANO, a political subdivision of the State of California, (hereinafter "CLIENT")
and CRW ASSOCIATES, a d.b.a. of CRW Systems, Inc., a California corporation (hereafter "CRW") for
the installation of a permit and code enforcement software, and other services, as specifically provided
herein (hereafter referred to as "the Project").
IN CONSIDERATION of the terms, conditions, and covenants set forth in this Agreement, CLIENT and
CRW agree as follows:
A. SCOPE OF SERVICES / SCOPE OF WORK
A.1. PROJECT DESCRIPTION:
The Project contemplated and the scope of CRW's services are described in Section B of this Agreement
and Exhibit A, attached hereto and incorporated herein by reference.
A.2. AGREEMENT CONTENTS:
This Agreement includes the following Exhibits
Exhibit A. Project Scope of Work.
Exhibit B. Project Milestone and Payment Schedule.
Exhibit C. Project Cost Summary
Exhibit D. Software License
Exhibit E. System Acceptance Testing
Exhibit F. Software Escrow Agreement
In the event there is a conflict between any of the terms of this Agreement and any of the terms of any
Exhibit hereto, the terms of this Agreement shall control the respective duties and liabilities of the parties.
A.3. COMMENCEMENT DATE / SCOPE OF WORK:
A.3.1. This Agreement shall commence on , 2006, and shall continue in full
force and effect unless terminated in writing by either party pursuant to the terms of this Agreement.
CRW shall not proceed to perform any services hereunder until CLIENT and CRW have established a
Project cost, a completion schedule, a time period for performance, have fully executed this Agreement,
and CLIENT has given its written authorization to perform. Written approval for performance and
compensation may be granted by the City Manager or his designee.
A.3.2. A Scope of Work, with itemized pricing of various items associated with the Project is attached
hereto as Exhibits A and B, and incorporated herein by this reference. Subject to CLIENT'S duties and
responsibilities provided in Section C, the time periods set forth in Exhibits A and B shall be adhered to.
The time periods indicated are provided as a general understanding of the estimated time period in which
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various Project items will be completed. It is not intended to impose strict deadlines for completion of all
or any part of the work.
A.3.3. The time schedule provided in Exhibit B, Project Milestone, is based in large part on the
assumption that CLIENT will provide all necessary information to CRW in a timely manner in
accordance with Section C of this Agreement.
B. DUTIES AND OBLIGATIONS OF CRW
B.1. SCOPE OF WORK:
B.1.1 After the commencement date, CRW shall perform the following services:
(1) Install Permit Management, Code Enforcement, Business License Tracking, and Project
Tracking software.
(2) Provide data conversion of CLIENT'S existing data and incorporate data into CRW system.
(3) Provide hands-on, Administrator Training, as specifically provided herein.
(4) Provide on-site, hands-on, User Training, as specifically provided herein.
(5) Provide remote access support during Annual Maintenance period. CLIENT to provide local
workstation with remote connection and appropriate remote access software.
By executing this Agreement, CRW agrees and represents to CLIENT that CRW possesses, or shall
arrange to secure from others, all of the necessary professional capabilities, experience, resources, and
facilities to provide CLIENT the services contemplated under this Agreement and that CLIENT relies
upon the professional skills of CRW to do and perform CRW's work. CRW further agrees and represents
that CRW shall follow the current, generally accepted practices in this area to the industry to render
opinions and provide professional services regarding the Project for which Services are rendered under
this Agreement.
B.1.2. CRW shall install software and provide all services in a fully competent and workmanlike manner
in accordance with the Scope of Work, subject to the terms and conditions as stated in the Agreement.
Any additional services must be evidenced by a written modification of this Agreement, or change request
pursuant to Section C of the Agreement. Services to be provided do not include hardware.
B.2. IMPLEMENTATION:
CRW shall perform implementation services including setup of permit/project/case types, fee formulas,
valuation schedules, using data provided by CLIENT to CRW. CRW shall provide custom report
development for up to three (3) custom reports and up to three (3) custom forms for Building Dept, plus
up to two (2) custom forms for Planning Dept, plus up to two (2) custom forms for Business License
Dept.
B.3. DATA CONVERSION:
CRW shall provide database conversion services necessary to convert the CLIENT's existing database to
CRW system format. The source information for data conversion shall be limited to ASCII, Access or
dBase-formatted data provided by CLIENT to CRW within 30 days of project commencement date.
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B.4. ADMINISTRATOR TRAINING:
CRW shall provide training registrations for designated System Administrators. The training will be
conducted at CLIENT offices for up to eight (8) staff members. The training will be two (2) days for the
System Administrator course, and three (3) days for the Report Writing course
B.5. USER TRAINING:
CRW shall provide training as further defined herein for Permit Trak, Code Trak, Business Trak, and
Project Trak software. Training will be conducted at CLIENT offices.
B.5.1 Subsequent days of User Training for up to eight (8) staff members, in addition to those already
allocated to CLIENT in Exhibit A if requested by the CLIENT, will be billed at the rate of $2,500 per
day, plus travel expenses.
B.6. MAINTENANCE AND SUPPORT:
CRW shall provide the following maintenance and support services to CLIENT during the twelve (12)
month time period following payment of Annual Maintenance and Technical Support fees. Annual
Maintenance and Technical Support fees are waived for the first twelve (12) month period following
System Acceptance of software, as defined in Exhibit E.
B.6.1. Trakit software modifications to correct bugs or errors that are reported to CRW by CLIENT.
B.6.2. Trakit software updates that are posted from time to time by CRW on web site
(www.crwassoc.com/support). Updates may be downloaded and installed by CLIENT onto CLIENT's
network.
B.6.3. Technical support via telephone. CRW reserves the right to restrict phone access to CLIENT -
designated System Administrators. Toll-free phone access is provided by CRW (888-279-2043).
B.6.4. Technical support via web form on CRW web site (www.crwassoc.com/sunoort).
B.6.5. Trakit Software enhancement requests may be submitted by CLIENT to CRW. Enhancement
requests will be reviewed by CRW and may be incorporated into future releases. CLIENT understands
that submittal of enhancement request does not obligate CRW to provide software modification.
B.6.6. CLIENT may register for and enroll in CRW training classes for System Administrators or Users.
Registration fees may vary from time to time. Registration for three (3) CLIENT staff are included in
Exhibit C Cost Summary.
B.7. NOT RESPONSIBLE FOR DAMAGES DUE TO UNFORESEEN DELAYS:
Neither CLIENT nor CRW shall be responsible for any damages resulting from delays outside of its
reasonable control, including, but not limited to, (a) failure of CLIENT to furnish timely information; (b)
failure of CLIENT to approve or disapprove of CRW's work, and/or (c) strikes, lockouts, accidents, or
acts of GOD.
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B.B. ACCEPTANCE OF WORK NOT A RELEASE.
Acceptance by the CLIENT of the services and products to be provided under this Agreement does not
operate as a release of CRW from professional responsibility for the work performed and services
provided.
C. DUTIES AND RESPONSIBILITIES OF CLIENT:
C.I. INFORMATION TO BE PROVIDED BY CLIENT:
C.1.1. CLIENT will provide all information necessary for CRW to establish the permit software control
files, including but not limited to:
1. Current valuation and fee structures.
2. Current Permit, Project, License, and Case types designations and categories.
3. Current Permit, Project, License, and Case types designations and categories.
4. Examples of all current reports used by the CLIENT relating to permit management.
5. Any exceptions to the typical permit process, or any special permit processing requirements.
C.1.2. The CLIENT will provide CRW with access to CLIENT workstations and disk space for
installation of the software.
C.1.3. The CLIENT will ensure and provide that staff who will be trained in the use of CRW software
will have sufficient basic knowledge of permit processing and MS -Windows functions.
C.2. CLIENT COOPERATION:
C.2.1. CLIENT understands that timely completion of the Project is dependent in significant part upon the
timely cooperation of CLIENT in providing information to CRW necessary to complete the project,
including, but not limited to: (a) Data obtained from CLIENT'S present system to be incorporated into the
new CRW system; and (b) information relative to desired permit forms to be incorporated into the CRW
system.
D. COMPENSATION
D.1. CRW COMPENSATION AND FEES:
CLIENT agrees to compensate CRW for professional services rendered under this Agreement for the total
contract price of $ 233,000.00 [Two Hundred Thirty Three Thousand Dollars], which amount shall
include all labor, materials, taxes, insurance and all other costs associated with the Project, except any
specific optional items identified in Exhibit C "Project Cost Summary". Such amount shall also include a
perpetual software license as provided in Exhibit D. Total Contract Price does not include any changes to
the work as may be requested by CLIENT and incorporated into the project pursuant to a written request
by CLIENT as provided in section E of this Agreement.
D.2. TERMS OF COMPENSATION
CRW will submit itemized invoices for work performed in a form satisfactory to CLIENT, describing its
services and costs for the period covered by the invoice according to the payment schedule shown in
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Exhibit C "Summary of Project Fee." CLIENT agrees to notify CRW of any disputed invoice within 5
business days of receipt of such invoice. Any such invoices shall be in full accord with any and all
applicable provisions of this Agreement. Failure of CLIENT to pay undisputed invoices within 30 days
of receipt will subject CLIENT to a late payment fee computed at a periodic rate of 1.0% per month of the
amount past due, representing an annual percentage rate of 12%, which late fee shall be applied to any
unpaid balance. If CRW submits an invoice which is incorrect, incomplete or not in accord with the
provisions of this Agreement, CLIENT shall not be obligated to process any payment to CRW until thirty
(30) days after a correct and complying notice has been submitted.
In no event shall CRW submit any billing for an amount in excess of the maximum amount of
compensation provided in Section D.1, unless authorized in writing by CRW.
E. CHANGES AND ADDITIONS TO THE WORK
E.1 REQUIREMENT OF WRITTEN CHANGE ORDERS:
CLIENT may request CRW to perform additional services not covered by the specific Scope of Work as
set forth in Exhibit A of this Agreement. Any such requests shall be submitted in writing, and shall be
signed by the Client Representative, as identified in I1.1 of this Agreement, and an authorized
representative of CRW. Such signed requests shall include (a) a description of the additional services to
be performed, and (b) the agreed upon price for such services. Any such requests signed by the Client
Representative, or other authorized agent of CLIENT, shall be deemed authorized by CLIENT and shall
bind CLIENT to its terms.
E.2. PAYMENT FOR ADDITIONAL WORK:
Any such additional work performed by CRW shall be added to the contract price and billed in
accordance with the 'Project Cost Summary" as outlined in Exhibit C of this Agreement. CRW will not
commence any additional services for the CLIENT until written authorization has been given by CLIENT
and approved by CRW, as provided above.
F. INDEMNIFICATION AND INSURANCE
F.I.I. CRW shall indemnify, defend and hold harmless CLIENT and its officers, employees, agents, and
representatives from and against any and all liability, claims, suits, actions, damages, and causes of action
brought against CLIENT based upon infringement of any United States copyright, trademark or patent.
CLIENT agrees to cooperate fully with CRW during such proceedings. CRW shall defend at its sole
expense, and with its choice of legal counsel, all proceedings arising out of the foregoing. In the event of
any finding of such infringement, CRW may replace, in whole or in part, the Software with a substantially
compatible and functionally equivalent computer program, or otherwise modify Software to avoid any
such infringement.
F.1.2. CRW shall indemnify, defend, and hold CLIENT and its officers, employees, agents, and
representatives harmless from and against any and all liability, claims, suits, actions, damages, and causes
of action arising out of the actions or conduct of CRW, or any of its officers, employees, or agents. Such
indemnification shall include, but not be limited to, claims of any personal injury, bodily injury, loss of
life, or damage to any property, or any violation of any federal, state, or municipal law or ordinance, or
other cause. The indemnification obligation of this section shall not apply to the extent any such claims
are determined to have arisen from the negligence or other misconduct of CLIENT, its officers,
employees, agents or representatives.
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F.1.3. It is understood that the duty of CRW to indemnify, defend, and hold CLIENT harmless includes
the duty to defend as set forth in Section 2778 of the California Civil Code, except CRW shall have the
right, at its own expense, to retain its own attorneys to defend CLIENT, which attorneys shall have the
right to control any litigation or arbitration brought by any claimant.
F.1.4. Acceptance of insurance certificates and endorsements required under this Agreement does not
relieve CRW from liability under this indemnification and hold harmless clause. This indemnification
and hold harmless clause shall apply whether or not such insurance policies shall have been determined to
be applicable to any of such damages or claims for damages.
F.1.5. CRW's indemnification and defense obligations under this section F shall not be enforceable
unless CLIENT provides written notice to CRW of any applicable claim within 30 days of receipt by
CLIENT of written notice of such claim from any claimant.
F.1.6. CRW shall reimburse the CLIENT for all costs and expenses (including but not limited to fees and
charges of attorneys or other professionals and court costs) incurred by the CLIENT in enforcing the
provisions of this section.
F.2. INSURANCE:
CRW, shall at CRW's own expense, purchase, maintain and keep in force during the term of this
Agreement (unless otherwise stated below) such insurance as set forth below. All insurance policies
provided under this Agreement shall be written on an `occurrence" basis. The insurance requirements
shall remain in effect throughout the term of this Agreement.
F.2.1. Worker's Compensation as required by law, Employers Liability Insurance of not less than
$100,000.00 00 for each accident, $100,000.00 disease -each employee, $500,000.00 disease -policy limit
F.2.2. Commercial General Liability Insurance - $1,000,000.00 Combined Single Limit
F.2.3. Professional Liability Insurance - $500,000.00 Limit. Professional Liability insurance will be in
force for twelve (12) months from commencement date. Professional Liability insurance shall apply to
services performed by CRW staff only. Professional Liability insurance shall not apply to third -party
services or services of subcontractors.
F.2.4. Automobile Liability: $1,000,000 Combined Single Limit Per Occurrence
F.2.5. All policies are to be written through companies duly approved to transact that class of insurance in
the State of California.
F.2.6. Insurance is to be placed with carriers with a Best rating of AXII or better.
F.2.7. CRW hereby waives subrogation rights for loss or damage to the extent same are covered by
insurance. Insurers shall have no right of recovery or subrogation against CLIENT, it being the intention
that the insurance policies shall protect all parties to the Contract and be primary coverage for all losses
covered by the policies.
F.3. PROOF OF INSURANCE
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Within 30 days of the commencement date CRW shall deliver to CLIENT a Certificate of Insurance for
Items F.2 above as proof that said insurance will remain in full force throughout the term of this
Agreement.
CLIENT, its officers and agents, shall be endorsed as an additional insured under CRW's General
Liability Insurance. CRW will not modify or cancel its General Liability Insurance without written
notification and approval from the CLIENT.
G. TERMINATION
G.1. TERMINATION OF AGREEMENT
G.1.1. This Agreement may be terminated by CLIENT at any time, with or without cause, upon written
notice to CRW. Notwithstanding the date of such notice, termination shall be effective upon receipt by
CRW of such notice of termination. In the event of termination by CLIENT, CLIENT shall pay CRW for
all services and materials provided to CLIENT pursuant to this Agreement up to and including the date of
receipt by CRW of notice of termination.
G.1.2. In the event CLIENT terminates this Agreement, the CLIENT agrees to immediately return all
source code or other materials provided to CLIENT by CRW, and to destroy, erase, and purge all
software provided by CRW from any and all CLIENT computers.
G.1.3. Within 30 days of termination CLIENT agrees to provide CRW with written confirmation that all
CRW software has been destroyed. Within its sole discretion, and upon reasonable notice to CLIENT,
CRW shall have the right to verify that CRW software has in fact been removed or destroyed by personal
inspection of CLIENT computers.
G.1.4. Any use by CLIENT of any CRW software after termination of this agreement by CLIENT
without the express written authorization of CRW shall be a breach of this agreement.
H. OWNERSHIP OF DOCUMENTS
H.1.OWNERSHIP OF DOCUMENTS
11.1.1. All plans, specifications, reports, and other design documents prepared by CRW pursuant to this
Agreement shall become property of CLIENT at such time as CLIENT has compensated CRW, as
provided herein.
H.1.2. All source code for computer programs or modifications to programs, which are produced pursuant
to this Agreement shall be deemed, and remain, the intellectual property of CRW and are protected under
the copyright, patent, or other laws, of the United States as well as other jurisdictions where such
programs are being used.
H.1.3. CLIENT agrees to respect CRW's purported ownership of any such proprietary rights which may
exist, including patent, copyright, trade secret, trademark and other proprietary rights, in and to Software
and any corrections, bug fixes, enhancements, updates or other modifications, including custom
modifications, to Software, whether made by CRW or any third party. Under no circumstances shall
CLIENT sell, license, publish, display, distribute or otherwise transfer to a third party Software or any
copy thereof, in whole or in part, without CRW's prior written consent.
H.2. SOURCE CODE ESCROW
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H.2.1. CRW shall maintain a software escrow account, as described in Exhibit F. A copy of the latest
source code for the software being installed by CRW pursuant to this Agreement shall be deposited in this
escrow account.
H.2.2. CRW will pay the entire cost of this source code escrow account.
H.2.3. CLIENT will be registered as a Registered Beneficiary of the Software Escrow Agreement, as
defined in Exhibit F.
I. COMMUNICATION THROUGH CLIENT / CRW DESIGNATED
REPRESENTATIVES:
All communication relating to project status shall be exchanged between a designated representative of
the CLIENT and a designated representative of CRW as identified below.
I.1. DESIGNATED CONTRACT REPRESENTATIVES:
I.1.1. The designated representative of CLIENT and CRW Associates is as follows:
CLIENT
CRW
Bret Caulder
Christopher R. Wuerz, P.E.
City of San Juan Capistrano
President, CRW Systems, Inc.
32450 Paseo Adelanto
d.b.a. CRW Associates
San Juan Capistrano, California 92675
16980 Via Tazon, Suite 320
Phone: (949) 234-4568
San Diego, California 92127
Facsimile: (949) 493-1251
Phone: (858) 451-3030
Email: bcaulder a),sanjuancapistrano.org
Facsimile: (858) 451-3870
Email: chris@,bcrw.com
L 1.2. If the designated representative or address of either party changes during the term of this
Agreement, a written notice shall be given to the other party prior to the effective date of change.
I.2 DESIGNATED SYSTEM ADMINISTRATOR:
I.2.1. The CLIENT Representative shall identify and designate System Administrators. All
communication related to day-to-day operations of the system, including system maintenance, systems
problems and/or troubleshooting, shall be made to CRW only through either the designated representative
of CLIENT as identified in 1.1.1 above, or the System Administrators as identified below.
I.2.2. The System Administrators shall participate in all training sessions conducted by CRW as required
by this Agreement, and shall become fully knowledgeable and competent to use all aspects of the system
software. (It is highly recommended that the designated System Administrators be someone with
experience and competence with personal computers.)
I.2.3. The System Administrator for CLIENT is designated as follows:
Name: TBD
J. MISCELLANEOUS GENERAL PROVISIONS
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J.1. LICENSES
CRW shall obtain and maintain all business licenses as may be required by law, including a City of San
Juan Capistrano business license.
12. STATUS OF CRW:
Throughout the term of this Agreement, CRW, its employees, subcontractors, and agents shall be
considered as an independent contractor(s). Nothing in this Agreement shall be interpreted to imply an
employee -employer relationship between CLIENT and CRW. CRW expressly warrants not to represent,
at any time or in any manner, that CRW is an employee or servant of CLIENT.
J.3. MEDIATION OF DISPUTES:
Prior to the commencement of any litigation arising out of this Agreement, both CRW and CLIENT agree
to participate in good faith in non-binding mediation of any dispute or claim, which remains unresolved
after informal discussions. Both CRW and CLIENT shall negotiate in good faith to select a qualified
mediator.
J.4. ATTORNEY'S FEES:
In the event that any legal proceeding is instituted by either CRW or CLIENT to enforce the terms of this
Agreement or to detennine the rights of CRW or CLIENT, the prevailing party in said legal proceeding
shall be entitled to recover its reasonable costs and attorney's fees. CLIENT's attorneys' fees, if awarded,
shall be calculated at the market rate.
J.5. APPLICABLE LAW:
This Agreement, its interpretation and all work performed thereunder shall be governed by the laws of the
State of California. Venue for the enforcement of this agreement shall lie exclusively in Orange County,
California.
All claims, disputes, and other matters in question arising out of, or relating to, this agreement or the
breach thereof shall be resolved in Orange County, California, and all parties hereto specifically waive
any "venue privilege" they may have in any other jurisdiction.
J.6. BINDING ON SUCCESSORS:
All the terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, assigns and legal representatives.
J.7. DUE AUTHORITY:
CLIENT represents and warrants that the person executing this Agreement on behalf of CLIENT is an
agent of CLIENT and has full and complete authority to execute this Agreement and enter into the terms
and covenants provided herein, and has been designated by CLIENT to execute this Agreement on behalf
of CLIENT.
CRW represents and wan -ants that the person executing this Agreement on behalf of CRW is an agent of
CRW and has full and complete authority to execute this Agreement and enter into the terms and
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covenants provided herein, and has been designated by CRW to execute this Agreement on behalf of
CRW.
J.B. WARRANTY OF TITLE
CRW warrants that it has good title and all proprietary rights to the Software to enable it to license its use
to CLIENT free of any proprietary rights of any other party or any other encumbrance.
J.9. APPLICATION SOFTWARE WARRANTY
CRW warrants that its Software will perform in the manner described in the Agreement documents
including CRW's Proposal for Permit Tracking System dated March 28, 2006, hereby incorporated by
reference as if fully contained herein and any other written user documentation for the version installed.
This Warranty shall commence upon date of acceptance by CLIENT as defined by Exhibit E attached
hereto.
J.10 SERVICES WARRANTY
CRW warrants that the services provided hereunder shall be executed in a correct and competent manner
consistent with the professional standards of the industry. Any error or defect in the services provided
hereunder shall be corrected by CRW at no additional cost to the CLIENT.
J.11. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement between CRW and CLIENT. Any prior
agreements, promises, proposals, negotiations or representations --oral or written—not expressly set forth
herein shall be of no force or effect. In the event of a conflict between the terms and conditions of this
Agreement and any document incorporated by reference, the terms and conditions of this Agreement shall
prevail. This Agreement may be modified or amended only by written agreement signed by both CRW
and the CLIENT.
J.12. AGREEMENT AS OFFER
This Agreement shall be valid only if it is signed by both CLIENT and CRW, and a signed original has
been received by both parties on or before October 31, 2006.
J.13. SEVERABILITY
If any part of this Agreement is found to be in conflict with applicable laws, such part shall be
inoperative, null and void insofar as it is in conflict with said laws, but the remainder of the Agreement
shall continue to be in full force and effect.
J.14. HEADINGS
The section headings appearing herein shall not be deemed to govern, limit, modify, or in any manner
affect the scope, meaning or intent of the provisions of this Agreement.
Page 10 of 29
0
CITY OF SAN JUAN CAPISTRANO
David M. Swerdlin, Mayor
ATTEST: Margaret R. Monahan, City Clerk
APPRO'AED AS TO FORM
Date
CRW SYSTEMS, INC. dba CRW ASSOCIATES
Christopher RPresident]
Page 11 of 29
U
Date
Date
Date
9/1,5-104
Date T
0 0
EXHIBIT A
PROJECT SCOPE OF WORK
Upon receipt of a written Notice to Proceed from CLIENT, CRW shall perform the following services:
A. On -Site attendance and participation in project meetings.
Meetings: Project kick-off meeting; software installation; database installation; project
implementation meetings.
B. Deliver computer software (TRAKIT) and database structures for SQL/Server database.
Deliverable: CD containing computer software; installation instructions; services to install
software on CLIENT network and up to three workstations; services to train CLIENT IT staff for
installation of remaining CLIENT workstations; services to install SQL/Server database and
tables.
C. Provide data conversion services.
Deliverable: CD and electronic transfer (via FTP or email) of converted database; services to
develop conversion software for translation; services to perform data conversion; services to
install converted data; services to investigate and correct any errors uncovered during conversion
balancing and/or system testing.
Applies to: Permits and Inspections; Project applications; Code Enforcement; Business Licenses.
CLIENT will provide to CRW all tables and files that are necessary for historical data conversion.
CLIENT agrees to provide all necessary files and data to CRW within thirty (30) days of project
commencement date.
D. Provide software training.
Deliverable: Provide System Administrator and Report Writing training for three (3) CLIENT
staff during scheduled training at CRW office.
Deliverable: Conduct twelve (12) days of on-site, hands-on End User training at CLIENT office.
Class size is limited to eight (8) students per day.
CRW to provide workstations (laptops) and networked server for all on-site classes. CLIENT to
provide classroom space at CLIENT facilities.
E. Provide Project Implementation services.
Deliverable: Develop up to three (3) custom reports and up to three (3) custom forms for Building
Dept, plus up to two (2) custom forms for Planning Dept, plus up to two (2) custom forms for
Business License Dept.; provide standard (ICBO/BOCA/SBCCI or other) Valuation tables;
develop custom valuations and fee formulas as directed by CLIENT staff, using information
provided by CLIENT.
Deliverable: Installation of permit forms, fee tables and valuations tables in TrakIt database.
Page 12 of 29
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Deliverable: Data import specification (using standard Traklt import function) for monthly
updates of assessor records.
CLIENT to provide information regarding fee formulas, usage, permit and business license
forms.
CLIENT agrees to provide all necessary custom report and custom form definitions to CRW
within thirty (30) days of project commencement date.
F. Provide MobileTrak module for remote inspection tracking and posting.
G. Provide eTraklt modules for web -based permit processing.
Deliverable: ASP and HTML pages (source code) to provide the following functions:
User/password logon.
User logon verification.
Permit lookup (by Permit Number, Site address, APN, Owner name)
Permit status information.
Onlinelnspection request.
Online Permit application
Online payment (requires City -provided pay portal)
Inspection result posting
H. Provide Twelve (12) months technical support and software updates/upgrades.
Applies to: TrakIt software. Time period for no -charge technical support to begin upon
completion of System Acceptance, as defined in Exhibit E.
Page 13 of 29
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EXHIBIT B
PROJECT MILESTONE AND PAYMENT SCHEDULE
j::!
!,tis 01acted 10iovete
1. Contract Execution and Notice to Proceed
On or before October 31,
2006
2. Project kick-off meeting. CRW reviews project timetable and
training schedule with CLIENT. CRW and CLIENT mutually
Date to be determined at
adjusts schedule as necessary. CRW installs standard software
kick-off meeting
with demonstration database for initial testing by CLIENT.
3. First Payment Due. 20% of total contract = $ 46,600
Date to be determined at
kick-off meeting
4. Initial Configuration and Data Conversion. CRW delivers
Date to be determined at
initial, preliminary configuration of system based on system
kick-off meeting
requirements provided by CLIENT. CRW delivers initial,
preliminary data conversion for CLIENT to begin review.
Subsequent deliveries of configuration and data conversion will
continue as necessary during the remainder of the project
implementation.
5. System Administrator Training.
Date to be determined at
kick-off meeting
6. Second Payment Due. 20% of total contract = $ 46,600
Date to be determined at
kick-off meeting
Date to be determined at
7. System Acceptance testing begins. CLIENT begins System
kick-off meeting
Acceptance Testing.
8. User Training Weeks 1.
Date to be determined at
kick-off meeting
9. Third Payment Due. 20% of total contract = $ 46,600
Date to be determined at
1
kick-off meeting
10. System Acceptance testing ends. CLIENT completes System
Acceptance Testing.
Page 14 of 29
F11
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11. User Training Weeks 2 and 3.
Date to be determined at
kick-off meetin
12. Fourth Payment Due. 20% of total contract = $ 46,600
Date to be determined at
kick-off meeting.
13. Go -Live support. CRW assists CLIENT in cut -over to live
Date to be determined at
operation.
kick-off meeting
14. Final Payment Due. 20% of total contract = $ 46,600
45 Days after the
completion of item 13
above.
Target dates on this schedule are intended to reflect projected completion dates for the respective milestone,
not contractual date deadlines.
Page 15 of 29
EXHIBIT C
PROJECT COST SUMMARY
Application Software Costs
1. Application Module Name: Traklt
Includes: PermitTrak, CodeTrak, BusinessTrak & ProjectTrak
Includes: CRM Trak, LandTrak, AECTrak, and Reports
2. Software Costs Twenty (20) Concurrent Users $ 60,000
3. eTrakIt Web Interface $ 15,000
eTrakit software and implementation
4. MobileTrak Module $ 15,000
eTrakit software and implementation
5. Cashiering Interface $ 5,000
6. GIS Interface to CityGIS by Digital Map Products included
7. Implementation and Project Management Costs $104,000
Kick-off meeting
$ 8,000
Project meetings on-site
$ 18,000
System config & setup of
Control tables
$ 70,000
System Installation
included
Go -live support
$ 8,000
8. Data Conversion $ 15,000
9. Training Costs
On-site training for End Users $ 24,000
Twelve (12) days for twenty (20) user license
System Administrator and Report Writing Courses $ 5,000
To be held at City offices; up to eight (8) students
10. Discount ($ 10,000)
TOTAL PROJECT COST (Items 2 through 10) $ 233,000
Annual Maintenance and Technical Support:
No Charge for first twelve (12) months following installation.
Trakit (20 User License), eTrakit and MobileTrak $ 14,500 year two
Trakit (20 User License), eTrakit and MobileTrak $ 14,900 year three
Trakit (20 User License), eTrakit and MobileTrak $ 15,350 year four
Trakit (20 User License), eTrakit and MobileTrak $ 15,810 year five
Page 16 of 29
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EXHIBIT D
SOFTWARE LICENSE AGREEMENT
This perpetual License Agreement for the use of "Community Development Software" (Software) developed
and marketed by CRW is granted to CLIENT by CRW as of the date of this Agreement.
SUMMARY OF LICENSE TERMS
1. Software is marketed by CRW under the title of "Trak It".
2. Software provided to the CLIENT under this License allows the CLIENT to perpetually use, not own, the
software.
3. Software is provided to the CLIENT as a multi-user, concurrent access license. The designated number of
concurrent Users/Administrators/Observers for this license is 20. CLIENT is permitted to install Software on
any and all workstations owned or controlled by the CLIENT. Software will allow a designated number of
concurrent users to access the databases maintained by Software. Users attempting to access the system
databases with Software after the designated number of concurrent users is logged on will be prohibited from
logging on.
4. This software license shall not be sub -licensed, re -sold, assigned, transferred or otherwise distributed by the
CLIENT to any other person, company or organization without the written authorization of CRW.
5. This Software, including any and all modifications, upgrades and bug fixes, is protected by the copyright
laws of the United States and international copyright treaties. Unauthorized copying of the Software,
including software that has been modified, merged or included with the Software, or the associated written
materials (the "Documentation") is expressly forbidden. CLIENT may not remove, obscure, or alter any notice
of patent, copyright, trademarks, trade secret or other proprietary rights in the Software. The Title, ownership
rights, and intellectual property rights in and to this Software shall remain with CRW.
6. CRW has made reasonable checks of the Software to confirm that it will perform in normal use on
compatible equipment substantially as described in the specifications for the Software. However, due to the
inherent nature of computer software, neither CRW nor any individuals involved in the development or
installation of the Software warrant that the Software or the Documentation is completely error free, will
operate without interruption, is compatible with all equipment and software configurations, or will otherwise
meet your needs.
7. CRW warrants that it has good title and all proprietary rights to the Software to enable it to license its use to
CLIENT free of any proprietary rights of any other party or any other encumbrance.
8. CRW warrants that its Software will perform in the manner described in the Agreement documents
including CRW's Response to the CLIENT's RFP, hereby incorporated by reference as if fully contained
herein and any other written user documentation for the version installed.
9. This Warranty shall commence upon date of acceptance by CLIENT as defined by Exhibit E attached
hereto.
10. Neither CRW nor any of the people or companies involved in providing this license to the CLIENT may be
held liable for any incidental or consequential damages caused by failures or faults of the software or its
functions.
Page 17 of 29
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11. CRW's sole responsibilities with respect to error corrections will be to correct any defects or errors in the
Software or its functions, which are brought to the attention of CRW by the CLIENT.
12. This License Agreement will remain in effect until CLIENT returns Software to CRW, or until CLIENT
destroys Software.
Page 18 of 29
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EXHIBIT E
SYSTEM ACCEPTANCE TESTING
CLIENT shall commence System Acceptance tests upon written notification from CRW that system software
and database conversion has been installed and is ready for System Acceptance testing. Testing shall be
conducted at CLIENT site, using CLIENT computer hardware. CLIENT staff will conduct all System
Acceptance Testing.
CLIENT shall be allowed a period of thirty (30) business days for System Acceptance Testing, beginning from
the date of notification as provided in paragraph 1 above, and continuing, and completed, as provided in
paragraphs 3 and 4 below. CLIENT shall immediately advise CRW, in writing, of any error, or perceived
error, discovered at any time during the testing period.
Upon delivery of written notification from CLIENT to CRW of a software system or database conversion
error, or other problem, has occurred, CRW shall have ten (10) business days to address and correct such error
so as to render the system operable. CRW shall provide written notice to CLIENT that the error has been
corrected. During the time period between notification of any error until to such time that CRW advises
CLIENT of correction of such error the thirty (30) day System Acceptance test period shall be suspended. The
thirty (30) day System Acceptance test period shall resume upon notice by CRW that the previously noticed
errors have been corrected and once the corrections have been made available to the CLIENT.
CRW shall provide written notice to CLIENT when the thirty (30) day System Acceptance test period has
expired. Thereafter, CLIENT shall have ten (10) business days to provide CRW with written notice of any
remaining errors or problems. ACCEPTANCE SHALL BE DEEMED TO HAVE OCCURRED AT THE
LATEST OF THE FOLLOWING DATES: (a) THE DATE WRITTEN NOTICE IS PROVIDED BY CRW
TO CLIENT THAT THE FINAL PROBLEMS IDENTIFIED BY CLIENT PURSUANT TO THIS SECTION
HAVE BEEN CORRECTED, OR (b) THE DATE OF NOTICE BY CRW TO CLIENT INDICATING THAT
THE ACCEPTANCE TESTING PERIOD HAS EXPIRED.
CLIENT may begin using the software for productive use following completion of the System Acceptance
tests. "Productive Use" shall include the issuance of any building permits, inspections and/or fee collection
from the general public for Phase 1 work. "Productive Use" shall include the receipt of any citizen complaint
or incident record from the general public for Phase 3 work.
CLIENT may not begin to use the software for productive use prior to completion of the System Acceptance
tests. If CLIENT begins using software for productive use prior to completion of the System Acceptance test,
then the system acceptance test will be deemed completed and satisfactory.
Page 19 of 29
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EXHIBIT F
SOFTWARE ESCROW AGREEMENT
n
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Date of Agreement: November 21, 2003 Escrow No. 5794 -MB
EscrowTech: EscrowTech International, Inc. Tel.: (801) 852-8202
C7 Data Center Building Fax: (801) 852-8203
333 South 520 West - Suite 230
Lindon, UT 84042
Owner: CRW Systems Inc. (dba CRW Associates) Tel.: (858)451-3030
16980 Via Tazon #320 Fax: (858)451-3870
San Diego, CA 92127
1. Software and Establishment of
Escrow. Owner owns, or has the right to license
or distribute, the "Software" identified in Exhibit
A. By this Agreement, Owner establishes an
escrow of "Deposit Materials" (see Exhibit A)
for the Software (the "Escrow").
2. Beneficiaries. Each licensee
of the Software who registers under Section 3
shall be a "Beneficiary."
3. Registration. To register a
licensee as a Beneficiary with EscrowTech:
(a) Owner and the licensee will complete
and execute EscrowTech's then -current
Beneficiary Registration Form.
(b) The completed and executed
Beneficiary Registration Form will be submitted
to EscrowTech.
(c) EscrowTech will give written notice to
Owner and the licensee of receipt of the
Beneficiary Registration Form.
4. Deposit Materials. Owner shall
deposit the "Deposit Materials" (including
"Updates") into the Escrow by delivering to
EscrowTech the Deposit Materials described in
Exhibit A. Owner warrants that it has the right
to provide the Deposit Materials to EscrowTech
for the purposes of this Agreement and shall
indemnify EscrowTech against, and hold it
Page 20 of 29
harmless from, any claim to the contrary by a
third party.
5. Encryption and Reproduction.
Owner warrants that none of the Deposit
Materials will be encrypted or password
protected and that all of the Deposit Materials
will be in a readable and useable form (for
purposes of the Permitted Use - see Section 14)
and will be readily reproducible by EscrowTech
for copying as needed under this Agreement
(see, e.g., Section 13). Exception: If Deposit
Materials are transmitted electronically to
EscrowTech via FTP or other electronic
transmission method accepted by EscrowTech,
then such Deposit Materials may be in an
encrypted format that is acceptable to
EscrowTech and that can be decrypted by
EscrowTech and stored in an unencrypted
format on physical media (e.g., a CD ROM). It
is Owner's responsibility to provide any
decryption tools/keys, passwords, and
information needed for decryption. It is not
EscrowTech's responsibility to discover if any
of the Deposit Materials are encrypted or
password protected or to provide de -encryption
tools/keys, passwords or information needed for
decryption.
6. Updates. Owner shall update
the Escrow by delivering to EscrowTech
Updated Deposit Materials ("Updates") as
n
described in Exhibit A. Updates shall be part of
the "Deposit Materials."
7. Deposit Procedure. Deposit
Materials shall be delivered by Owner to
EscrowTech in accordance with EscrowTech's
then -current deposit procedures. Duplicate
copies (i.e., two sets) of all Deposit Materials in
reliable storage media should be delivered by
Owner, but EscrowTech is not responsible if
Owner fails to comply with this.
(a) Deposit Inventory Form.
Owner will submit with the Deposit Materials a
completed Deposit Inventory Form. Such
Deposit Inventory Form shall be a representation
by Owner to each Beneficiary and EscrowTech
that the Deposit Materials conform to the
descriptions and identifications in the Deposit
Inventory Form.
(b) Confirmation. To confirm
receipt of the Deposit Materials, EscrowTech
will mail or otherwise deliver a copy of the
Deposit Inventory Form to Owner and each
Beneficiary.
(c) Deficiency. If a Beneficiary
believes that the Deposit Materials, as identified
in the Deposit Inventory Form, are deficient
(e.g., incomplete or inadequate) or if there is
some other problem, then the Beneficiary shall
notify Owner and resolve the matter with
Owner. It is Owner's responsibility to deposit
all required Deposit Materials.
(d) Reproducible. It is Owner's
responsibility to ensure that the Deposit
Materials provided by Owner (including,
without limitation those on any electronic media
- e.g., CD-ROMs, magnetic tapes, etc.) are
provided in a reproducible form.
(e) Verification. EscrowTech is
not responsible for verifying the completeness,
accuracy, suitability, state, format, safety,
quality, or content of the Deposit Materials.
However, at the request of any Beneficiary or
Beneficiaries, EscrowTecb may conduct
technical verifications of Deposit Materials for
such Beneficiary or Beneficiaries in accordance
with a Technical Verification Addendum to this
0
Agreement. The requesting Beneficiary or
Beneficiaries must pay EscrowTech's then -
current fees plus expenses for the technical
verifications.
(f) Designated Beneficiary Option.
If certain Deposit Materials apply only to one
Beneficiary (e.g., the Software is customized for
a given Beneficiary), then Owner has the option
of depositing such Deposit Materials only for
that Beneficiary. In making a given deposit of
Deposit Materials, Owner may designate the
Beneficiary in the Deposit Inventory Form.
Only the designated Beneficiary will have
escrow rights (and potentially release rights)
with respect to these Deposit Materials. Except
for this restriction, the other terms and
conditions of this Agreement shall apply thereto.
It is the responsibility of Owner to clearly
indicate the designated Beneficiary. Owner may
designate more than one Beneficiary, and in
such case each of the designated Beneficiaries
will be a designated Beneficiary as described
above. The Beneficiary Fee for each designated
Beneficiary will be increased as provided in
Exhibit B.
8. Replacement of Obsolete
Deposit Materials. Owner may identify for
EscrowTech any Deposit Materials which
become obsolete, outdated or redundant and
instruct EscrowTech to destroy or return the
identified Deposit Materials. Such identification
shall be made in writing and must be consistent
with the labeling and identification used by
Owner when the Deposit Materials were
delivered to EscrowTech or be otherwise
understandable to EscrowTech. The instructions
to EscrowTech must be accompanied by written
permission from each affected Beneficiary for
EscrowTech to destroy or return the identified
Deposit Materials in accordance with Owner's
instructions. The "Deposit Materials" shall
cease to include any destroyed or returned
Deposit Materials.
9. License Agreement. Owner and
each Beneficiary have entered into one or more
agreements identified in the Beneficiary's
Registration Form that relate to the Software.
For that Beneficiary, such agreement(s) is (are)
referred to herein as the "License Agreement."
Page 21 of 29
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This Software Escrow Agreement is
"supplementary" to the License Agreement
within the meaning of Section 365(n) of the U.S.
Bankruptcy Code (11 U.S.C. 365(n)). If this
Agreement and/or the License Agreement are/is
rejected by Owner as a debtor in possession or a
trustee or by any other person or entity under the
U.S. Bankruptcy Code, then the Beneficiary may
elect to retain its rights as provided in Section
365(n). The Parties intend that no bankruptcy or
bankruptcy proceeding, petition, law or
regulation (and no other proceeding, petition,
law or regulation of a similar nature in any state
or foreign jurisdiction) will impede, delay or
prevent the release of Deposit Materials to a
Beneficiary in accordance with the provisions of
this Agreement, and Owner hereby conveys and
licenses to EscrowTech such rights (including
intellectual property rights) as are necessary to
allow EscrowTech to lawfully make such release
and perform this Agreement. This license is
granted as of the date of this Agreement and
shall predate any bankruptcy petition subsequent
to such date.
10. Embodiments oflntellectual
Property. The Parties agree that the Deposit
Materials are an "embodiment" of "intellectual
property" as those terms are used in Section
365(n) of the U.S. Bankruptcy Code (I1 U.S.C.
365(n)). The tangible Deposit Materials and any
copies thereof made by EscrowTech in
accordance with this Agreement are owned by
EscrowTech, but such ownership does not
include ownership of any copyrights or other
intellectual property in or to the Deposit
Materials.
11. Release of Deposit Materials -
Reguest of Beneficiary. A Beneficiary will be
entitled to receive the Deposit Materials if the
"Release Condition" described in the applicable
Beneficiary Registration Form occurs. The
following release procedure shall apply:
(a) Notice to EscrowTech. The Beneficiary
shall give written notice to EscrowTech
informing EscrowTech that the Release
Condition has occurred, and shall request
EscrowTech in writing to release the Deposit
Materials to Beneficiary.
0
(b) Notice to Owner. EscrowTech shall
then promptly send written notice to Owner of
the Beneficiary's notice and request for release.
Such notice will be sent by a "next day" or
"overnight" or "priority" or "express" delivery
service (e.g., Federal Express, UPS, U.S.
Express Mail, etc.) or will be delivered
personally.
(c) Release and Waiting Period. Unless
there is a timely dispute or objection as provided
in Section 11 (d) below, EscrowTech shall
release the Deposit Materials to the Beneficiary
promptly after expiration of the Waiting Period.
The "Waiting Period" shall be two weeks,
beginning on the date that the notice is sent by
EscrowTech to Owner.
(d) Dispute. If Owner disputes the
Beneficiary's right to the Deposit Materials or
otherwise objects to their release, then Owner
must give written notice of such dispute or
objection to EscrowTech prior to the conclusion
of the Waiting Period. If EscrowTech receives
such timely notice of dispute or objection,
EscrowTech will not release the Deposit
Materials to the Beneficiary until the dispute is
resolved by Owner and the Beneficiary in
accordance with Section 19 or by court order.
Such resolution will determine whether or not
the Beneficiary is entitled to receive the Deposit
Materials. EscrowTech has no obligation to
determine whether or not the Beneficiary is
entitled to the Deposit Materials.
(e) Partial Release. If Owner
believes that the Beneficiary is entitled to a
release of only a portion of the Deposit
Materials (e.g., Deposit Materials corresponding
to unlicensed versions - see (f) below), it is the
responsibility of Owner to indicate this in a
written notice to EscrowTech and to clearly
identify in such notice the portion of the Deposit
Materials that should be released to the
Beneficiary and what should not be released.
This notice must be given promptly and must be
received by EscrowTech within the above
Waiting Period. If the Beneficiary believes that
it is entitled to more than said portion of the
Deposit Materials, then this dispute shall be
resolved in accordance with Section 19.
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(f) Unlicensed Versions. A
Beneficiary is not entitled to receive Deposit
Materials corresponding to Software versions
not licensed or provided by Owner to
Beneficiary. [For example, if the Deposit
Materials correspond to versions 1.0, 2.0, 2.1
and 3.0 of the Software, but only versions 2.0
and 2.1 are licensed to the Beneficiary, then the
Beneficiary is only entitled to a release of the
Deposit Materials corresponding to versions 2.0
and 2. 1.] If applicable, it is the responsibility of
Owner under (e) above to inform EscrowTech of
the specific Deposit Materials which should not
be released to the Beneficiary. In the absence of
such information, EscrowTech may release all of
the Deposit Materials in the Escrow or all of the
Deposit Materials requested by the Beneficiary
under (a) above.
12. Release of Deposit Materials -
Owner's Instruction. Upon receipt of notice
and instruction from Owner and the receipt of
the Release Fee, EscrowTech shall release the
Deposit Materials to the Beneficiary designated
in the instruction.
13. Copies. Because there are
multiple Beneficiaries under this Escrow, any
Deposit Materials released to Beneficiaries
under this Agreement may be in the form of
copies of the Deposit Materials. EscrowTech
may copy the Deposit Materials for the purposes
of this Agreement. Such copies shall be
considered Deposit Materials for the purposes of
this Agreement.
14. Use of Released Deposit
Materials. Deposit Materials released to a
Beneficiary under this Agreement may only be
used by the Beneficiary as permitted in its
Beneficiary Registration Form ("Permitted
Use"). Owner hereby licenses the Beneficiary to
practice the Permitted Use. Although
Beneficiary is not entitled to receive any Deposit
Materials until after a release under this
Agreement, this Permitted Use license is granted
as of the date the applicable Beneficiary
Registration Form is first signed by Beneficiary
or Owner and shall predate any bankruptcy
petition subsequent to such date. If this
Agreement and/or the License Agreement are/is
rejected by Owner as a debtor in possession or
n
U
by a trustee or by any other person or entity
under the U.S. Bankruptcy Code, then the
Beneficiary may elect to retain this Permitted
Use license as part of the rights it may retain in
accordance with Section 365(n) of the U.S.
Bankruptcy Code. This shall not negate,
prejudice or limit any other rights which the
Beneficiary may have.
15. Fees. EscrowTech shall receive
the following fees and payments:
(a) Annual Fee. Beginning on the
date of this Agreement and on each anniversary
thereafter until termination of the Escrow,
Owner shall pay an Annual Fee to EscrowTech
in accordance with the Fee Schedule (Exhibit
B). The Annual Fee is payable at the beginning
of the contract year to which it is applicable.
(b) Beneficiary Fees. For each Beneficiary,
the Beneficiary Fee will be paid to EscrowTech
in accordance with the Fee Schedule (Exhibit
B). The Beneficiary Fee is first payable at the
time of registration. This entitles the
Beneficiary to registration for the remainder of
the contract year in which the Beneficiary Fee is
paid. Thereafter and until the Beneficiary ceases
to be a "Beneficiary" (see Section 16), the
Beneficiary Fee will be paid to EscrowTech in
advance for each subsequent contract year.
"Contract years" are based on the date of this
Agreement and anniversaries thereof.
(c) Excess Update Fee. Four
Updates to the Escrow per contract year are
included at no extra charge. If more than four
Updates are made in a contract year, Owner
shall pay the Excess Update Fee (see Exhibit B)
to EscrowTech for each extra Update. Any
deposits of Deposit Materials for designated
Beneficiaries under Section 7(f) shall be deemed
Updates for the purpose of this Excess Update
Fee.
(d) Release Fees. Each Beneficiary
requesting a release of any Deposit Materials
under Section 1 I shall pay the Release Fee (see
Exhibit B) to EscrowTech. If any Deposit
Materials are released to a Beneficiary at the
instruction of Owner under Section 12, Owner
shall pay the Release Fee to EscrowTech.
Page 23 of 29
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(e) Excess Storage Charges. If the storage
requirement for the Deposit Materials exceeds
two cubic feet, then Owner will pay the Excess
Storage Charge (see Exhibit B).
(f) Increases. The fees set forth in Exhibit
B are fixed for the first three years of this
Agreement. Thereafter, fees are subject to
reasonable increase by EscrowTech upon written
notice. EscrowTech's then -current fees shall be
payable.
(g) Costs. Each Beneficiary shall pay
EscrowTech for reasonable costs incurred by
EscrowTech in releasing, copying and delivering
the Deposit Materials to the Beneficiary. All
other out-of-pocket costs reasonably incurred by
EscrowTech in connection with this Agreement
are reimbursable by the applicable Beneficiary
and Owner to EscrowTech. Costs are not
included in the above fees and are payable in
addition to the above Fees.
16. Termination of Beneficiary's
Registration. A Beneficiary's registration will
terminate and the Beneficiary will cease to be a
"Beneficiary" under this Agreement if any of the
following occurs:
(a) The Beneficiary gives written
notice of such termination to EscrowTech.
(b) The Beneficiary's License Agreement
terminates. [If the License Agreement consists
of more than one agreement and if less than all
such agreements terminate, then the License
Agreement shall consist of the unterminated
agreements and the Beneficiary shall continue as
a "Beneficiary" under this Agreement.] In the
event of such termination, the Beneficiary and
Owner will give written notice thereof to
EscrowTech. If such notice is given by Owner,
but not the Beneficiary, then EscrowTech may
send notice thereof to Beneficiary and if
EscrowTech does not receive a written objection
from Beneficiary within three weeks after the
date of EscrowTech's notice, then EscrowTech
may terminate the Beneficiary's registration.
(c) The Beneficiary breaches this
Agreement and does not cure such breach within
30 days of written notice of such breach, and
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EscrowTech gives notice of termination to the
Beneficiary.
(d) The Escrow terminates.
EscrowTech will have no obligation or liability
to the Beneficiary after termination of its
registration. Termination of a Beneficiary's
registration shall not affect the other
Beneficiaries.
17. Termination of Escrow.
Subject to Section 18, this Escrow may be
terminated by either Owner or EscrowTech upon
90 days advance written notice of termination to
the other Party and to the Beneficiaries.
Termination will not be effective until the end of
the 90 day period (and any extension pursuant to
Section 18). If a Release Condition occurs and
EscrowTech is given written notice thereof
under Section I I(a) prior to the date of
termination, then the Escrow will not terminate
without the written consent of the affected
Beneficiaries. Upon termination of the Escrow,
the following shall apply:
(a) EscrowTech shall either return the
Deposit Materials to Owner or destroy the
Deposit Materials, whichever Owner requests.
If destruction is requested, EscrowTech will
certify in writing to Owner that such destruction
has occurred.
(b) EscrowTech shall have no obligation or
liability to Owner or any Beneficiary after
termination.
(c) Termination of the Escrow shall not
affect any rights and licenses granted to
EscrowTech or a Beneficiary with respect to
Deposit Materials released to (or which should
be released to) the Beneficiary because of a
Release Condition occurring prior to the date of
termination.
18. Establishment of Substitute
Escrow. During the 90 day period under Section
17, Owner shall establish a substitute escrow of
the Deposit Materials with a third party escrow
agent for the benefit of each Beneficiary. The
substitute escrow must be approved by the
Beneficiary, but such approval will not be
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unreasonably withheld or delayed. If necessary,
this matter shall be resolved in accordance with
Section 19. If more than 90 days is needed to
establish the substitute escrow and if
EscrowTech receives written notice from Owner
or a Beneficiary of such need prior to the end of
such 90 days, then the 90 day period under
Section 17 shall be extended as reasonably
necessary and the Escrow shall not terminate
until EscrowTech receives written notice from
Owner that the substitute escrow has been
established and approved. Owner has no
obligation to establish a substitute escrow if all
License Agreements for all Beneficiaries have
terminated or if none of the Beneficiaries request
a substitute escrow within three weeks after an
written inquiry thereof from Owner to each
Beneficiary.
19. Dispute Resolution. In the
event of any dispute between any two or more of
the Parties relating to this Agreement or the
Escrow, they shall first seek to settle the dispute
by mutual agreement. If they have not reached a
settlement within one week, then any disputing
Party may thereafter submit the dispute to
arbitration, and if so submitted, such dispute
shall be finally settled by arbitration conducted
in accordance with the commercial arbitration
rules of the American Arbitration Association or
its successor. The disputing Parties shall
attempt to mutually agree upon a neutral
arbitrator. If the disputing Parties cannot reach
such agreement, they shall request the American
Arbitration Association or its successor to
designate a neutral arbitrator. Any arbitration
involving EscrowTech as a party shall be
conducted in Salt Lake City, Utah. Any
arbitration to which EscrowTech is not a party
shall be conducted in Owner's city as indicated
at the beginning of this Agreement. This
Section does not apply to any dispute between
two Beneficiaries that does not include
EscrowTech or Owner as a party to such dispute.
The institution of any arbitration proceeding
hereunder shall not relieve any Party of its
obligation to make payments under this
Agreement. The decision by the arbitrator shall
be binding and conclusive upon the Parties, their
successors, assigns and trustees and they shall
comply with such decision in good faith, and
each Party hereby submits itself to the
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jurisdiction of the courts of the place where the
arbitration is held, but only for the entry of
judgment or for the enforcement of the decision
of the arbitrator hereunder. Judgment upon the
award may be entered in any court having
jurisdiction.
20. Protection of Deposit
Materials. EscrowTech shall keep the Deposit
Materials delivered to it in secure storage and
shall keep the contents thereof confidential. If
any of the Deposit Materials are damaged,
destroyed or lost by fire, theft, accident, or other
mishap or cause, Owner shall promptly submit
to EscrowTech such Updates or replacements as
are necessary to replace the damaged, destroyed
or lost Deposit Materials. There shall be no
Excess Update Fees charged for such Updates or
replacements.
21. Indemnification. In the event
that EscrowTech takes any action or inaction at
the request or demand of Owner or a
Beneficiary, then the Owner or Beneficiary
making such request or demand shall indemnify
and hold harmless EscrowTech and its directors,
officers, employees, shareholders, and
representatives from and against any and all
liabilities, claims, judgments, damages, losses
and expenses, including attorneys' fees, arising
out of or relating to such action or inaction.
22. Depository Only. EscrowTech
acts hereunder as a depository only and is not
responsible or liable for the completeness,
accuracy, suitability, state, format, safety,
quality, content, sufficiency, correctness,
genuineness or validity of the Deposit Materials
or any document submitted to EscrowTech or
the execution of the same or the identity,
authority, or rights of any person executing or
depositing the same. EscrowTech is not
responsible for any loss of Deposit Materials due
to defective, outdated, or unreliable storage
media (e.g., CD ROMs, magnetic tape, disks,
etc.) or for the degradation of storage media.
23. Uncertainty. Notwithstanding
anything in this Agreement to the contrary, if
EscrowTech is uncertain as to any duty,
obligation, demand, or right, EscrowTech may
hold the Deposit Materials and refrain from
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taking any action and wait for a final resolution
under Section 19 or a court order.
24. Reliance. EscrowTech shall not
incur any liability in acting upon any notice,
request, waiver, consent, receipt or other paper
or document believed by EscrowTech to be
genuine and to be signed by the proper party or
parties, or in acting upon any resolution under
Section 19 or any court order.
25. Extraordinary Services. In
addition to the fees and charges for the usual
services of EscrowTech under this Agreement
(see Section 15 and Exhibit B), EscrowTech
shall be entitled to additional reasonable
compensation should EscrowTech be requested
or required to perform any additional or
extraordinary service; and EscrowTech shall be
reimbursed for any out-of-pocket expenses
(including, without limitation, travel expenses
and fees of counsel) reasonably incurred in
connection with such additional or extraordinary
services. Extraordinary services include, but are
not limited to, any involvement of EscrowTech,
at the request or demand of Owner or a
Beneficiary, in any arbitration or litigation
between Owner and the Beneficiary.
26. Disclaimer. ESCROWTECH
MAKES NO WARRANTY NOT
EXPRESSLY SET FORTH HEREIN. ANY
IMPLIED WARRANTIES ARE
DISCLAIMED AND EXCLUDED BY
ESCROWTECH.
27. Limitation on Liability. FOR
ANY AND ALL CLAIMS AND CAUSES OF
ACTION (INCLUDING WITHOUT
LIMITATION BREACH OF CONTRACT,
TORT, MALPRACTICE, ETC.),
ESCROWTECH'S AGGREGATE
LIABILITY TO OWNER AND THE
BENEFICIARIES SHALL NOT EXCEED
THE TOTAL FEES PAID TO
ESCROWTECH UNDER THIS
AGREEMENT. IN NO EVENT SHALL
ESCROWTECH BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL,
EXEMPLARY, SPECIAL, OR PUNITIVE
DAMAGES OR LOSS OF PROFITS,
REVENUES OR BUSINESS, EVEN IF
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ADVISED OF THE POSSIBILITY
THEREOF.
28. Interpretation. The wording
used in this Agreement is the wording chosen by
the Parties to express their mutual intent, and no
rule of strict construction shall be applied
against or in favor of any Party. Section
headings are for convenience only, and do not
limit or affect the provisions of this Agreement
or their interpretation.
29. Entire Agreement. This
Agreement constitutes the entire agreement of
the Parties relating to the Escrow. This
Agreement sets forth all the duties and
obligations of EscrowTech with respect to any
and all matters relating to this Agreement, the
Escrow or the Deposit Materials. EscrowTech
has no implied duties or obligations.
30. Force Majeure. Except for
obligations to make payment, no Party shall be
liable for any failure to perform arising from
causes beyond its control, including, but not
limited to, fire, storm, flood, earthquake,
explosion, accident, theft, terrorism, acts of
public enemies, war, insurrection, sabotage,
illness, labor disputes or shortages, product
shortages, failure or delays in transportation,
inability to secure materials, parts or equipment,
acts of God, or acts of any governmental
authority or agency thereof.
31. Governing Law. This
Agreement, the Escrow and the relationship of
EscrowTech with Owner and each Beneficiary
shall be governed and construed under and in
accordance with the laws of the state of Utah
without regard to conflict of laws principles.
Furthermore, in the event of any litigation or
arbitration between EscrowTech and Owner or
between EscrowTech and any Beneficiary, such
litigation or arbitration shall be conducted
exclusively in Salt Lake City, Utah and the
Parties hereby agree and submit to such
jurisdiction and venue.
32. Notices. All notices under this
Agreement shall be in writing and shall be
delivered to the address indicated for the
intended Party at the beginning of this
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Agreement or, in the case of a Beneficiary, on
Beneficiary's Registration Form, or to such
substitute address as any Party may designate for
itself by proper notice to the other Parties. It is
the responsibility of each Party to keep the other
Parties informed of its address and telephone
and fax numbers (except that a Beneficiary is
not obligated to keep other Beneficiaries
informed of this information).
33. Modification. This Agreement
may only be modified, amended or rescinded by
a writing signed by all affected Parties.
34. Assignment. This Agreement
may be assigned by a Party to a successor who
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acquires substantially all of such Party's
business assets relevant to the subject matter of
this Agreement. The assigning Party shall give
notice thereof to the other affected Parties and
shall deliver to such other affected Parties a
copy of the successor's written agreement to
accept or assume this Agreement.
35. Execution. This Agreement
may be executed in any number of counterparts,
each of which shall be deemed an original, but
all of which taken together shall constitute one
and the same instrument. The persons signing
below represent that they are duly authorized to
execute this Agreement for and on behalf of the
Party for whom they are signing.
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SOFTWARE ESCROW AGREEMENT
BENEFICIARY REGISTRATION FORM
Owner: CRW Systems, Inc Escrow No. 5794 -MB
Beneficiary: City of San Juan Capistrano, CA (949) 2344568 Fax: (949) 493-1251
Contact: Bret Caulder E -Mail: bcaulder(a),sanivancapistrano.org
This Beneficiary Registration Form applies to the above -identified Escrow and the Software Escrow
Agreement dated November 21, 2003 to which Owner and EscrowTech International, htc.
("EscrowTech") are parties (the "Escrow Agreement").
Owner and Beneficiary have entered into one or more other agreements identified below:
AGREEMENT FOR THE INSTALLATION AND USE OF
PERMIT, PLANNING and CODE ENFORCEMENT SOFTWARE
Such agreement(s) (including addendums or amendments thereto, if any) is (are) referred to in the Escrow
Agreement as the "License Agreement."
Beneficiary has received and reviewed a copy of the Escrow Agreement. Beneficiary agrees to the terms
and conditions of the Escrow Agreement and is hereby made a Party thereto. Beneficiary is entitled to the
rights and benefits of a `Beneficiary" under the Escrow Agreement and accepts the obligations of a
"Beneficiary" under the Escrow Agreement.
Appendix 1, attached hereto, is part of this Beneficiary Registration Form and describes the Release
Condition and Permitted Use applicable to the Beneficiary under the Escrow Agreement.
Date of this Beneficiary Registration: September 1, 2006
ACCEPTED AND AGREED TO BY BENEFICIARY AND OWNER:
Beneficiary: City of San Juan Capistrano, CA Owner: CRW Systems, Inc.
Authorized Signature
David id. Swerdlin, Mayor
of e—i DLVy IA�
Authorized Signature
6&*450DP*%Z- R. WVW2
For EscrowTech Only!
Date Received by EscrowTech: EscrowTech Signature:
Page 28 of 29
SOFTWARE ESCROW AGREEMENT
BENEFICIARY REGISTRATION FORM
APPENDIX 1
RELEASE CONDITION
The Release Condition shall be deemed to have occurred if any of the following is satisfied:
a. Owner files a petition for protection under the U.S. Bankruptcy Code, or an involuntary petition
in bankruptcy is filed against Owner and is not dismissed within 60 days thereafter.
b. Owner defaults in its obligation to provide maintenance and support services as required by the
License Agreement (or any other contract with Beneficiary), and fails to cure such default within 10 days
after receiving written notice of the default from Beneficiary. The notice must describe the default and
state the action which Beneficiary believes is necessary to cure the default.
C. Beneficiary becomes entitled to a release of the Deposit Materials (i.e., source code for the
Software) pursuant to the terms of the License Agreement.
PERMITTED USE OF RELEASED DEPOSIT MATERIALS:
In the event that the Deposit Materials are released to Beneficiary, the following shall apply:
a. Beneficiary may only use the Deposit Materials to maintain, modify and enhance the Software.
The maintained, modified and enhanced Software may only be used in accordance with the License
Agreement.
b. Beneficiary may not disclose the Deposit Materials to any third parry and shall keep the Deposit
Materials confidential, except as provided below.
C. Beneficiary may engage the services of independent contractors (e.g., computer programmers or
an outsourced maintenance service) to assist Beneficiary in exercising its Permitted Use rights. Each such
independent contractor must agree in writing that itihe/she will not disclose or transfer the Deposit
Materials to any other person, and will not use the Deposit Materials for any purpose other than to assist
Beneficiary in exercising its Permitted Use rights. These restrictions shall not limit or negate the rights, if
any, of the independent contractor with respect to materials that are similar or identical to the Deposit
Materials and are lawfully received by the independent contractor from a source other than Beneficiary
(e.g., a maintenance service that receives similar or identical materials from other beneficiaries or
licensees).
d. Items a., b. and c. above are subject to such additional rights or limitations as may be set forth in a
provision, if any, in the License Agreement which addresses use of the released Deposit Materials by
Beneficiary.
The Permitted Use is a fully paid-up license and may not be revoked, terminated or rejected without
Beneficiary's written consent. This Permitted Use license also includes the right to use and copy the
binary, executable and object code versions of the Software and the maintained, modified and enhanced
versions of Software created from or with the Deposit Materials.
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